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Ghosn to be re-arrested for understating income

The shock arrest of Ghosn has thrown the international spotlight onto Japan's criminal justice system

The shock arrest of Ghosn has thrown the international spotlight onto Japan's criminal justice system, where suspects face prolonged detention and interrogation without lawyers present.

By AFP and Bloomberg

Tue 04 Dec 2018 11:11 AM

Former Nissan Motor Co. Chairman Carlos Ghosn faces likely re-arrest next week as Tokyo prosecutors add a fresh claim that he understated his income by more than has previously been reported, according to a Japanese media report.

Prosecutors plan to re-arrest Ghosn and Greg Kelly, a fellow member of Nissan’s board, on Dec. 10, Sankei reported, citing people familiar with the matter. The prosecutors believe that Ghosn’s pay was understated by about 9 billion yen ($79.2 million), the newspaper said.

Ghosn and Kelly were arrested Nov. 19 over allegations that the longtime leader of the Japanese automaker understated his income by 5 billion yen over the five years that ended in fiscal 2014. The new claim by prosecutors involves the years ended in fiscal 2017.

Nissan representatives weren’t immediately available to comment on the report outside normal business hours.

Japan's justice system

The shock arrest of Ghosn has thrown the international spotlight onto Japan's criminal justice system, where suspects face prolonged detention and interrogation without lawyers present.

Rights groups, lawyers and legal scholars have for years criticised the system, which relies heavily on squeezing out a "confession" from a suspect after lengthy and gruelling questioning.

After securing this confession, prosecutors nearly always secure a conviction at trial, as an admission of guilt usually outweighs all other evidence.

Colin Jones, a professor at Doshisha Law School, wrote recently in the Japan Times daily that the system is often referred to as "hitojichi shiho" or "hostage-based justice system."

"The 'hostage' is the suspect. The 'ransom' is their confession," wrote Jones.

But despite international criticism, there is little public appetite for change, as Japan's ultra-safe streets mean ordinary people have virtually no experience of crime and often view it as an abstract concept.

Authorities also defend the status quo, arguing that the nation's legal protocols have emerged out of Japan's unique culture and history and foreigners should mind their own business.

'Aggressive interrogations'

Ghosn, 64, was arrested on November 19 and the court has granted prosecutors' requests to hold him through December 10 to decide whether to indict him on charges of under-reporting his salary.

Prosecutors are widely expected to file additional charges against the tycoon and with each charge they can seek to hold him for another 22 days with limited access to his lawyers.

Even after that, the high-profile businessman can still be held in pre-trial detention.

All this has prompted some criticism abroad, particularly in France, where the high-profile tycoon holds citizenship.

The Japanese system "creates an environment which makes it possible for aggressive interrogations and risks producing forced confessions and false convictions," the Japan arm of Amnesty International told AFP.

Hirofumi Uchida, criminal law specialist and professor emeritus at Kyushu University in western Japan, said it was "very hard to gain public empathy" for protecting the rights of criminal suspects.

"We need to bring the system up to par with international standards," with shorter detentions, allowing lawyers to be present during questioning and less reliance on confessions in court, he told AFP.

However, prosecutors stress they are working within the existing legal framework, which emerged from the wreckage of World War II, when Japan sought to restore social order via bolstered authority for prosecutors.

In the fevered post-defeat atmosphere, suspects' human rights were seen as a secondary concern, say experts.

Shin Kukimoto, deputy chief prosecutor at Tokyo District Public Prosecutors Office, lashed out at foreign criticism of their work in a recent news conference.

"Each and every country has its unique history and tradition and systems. I do not criticise other countries' systems just because they are different," said Kukimoto.

"We do not unnecessarily keep people in custody for a long time," Kukimoto said.

False convictions

Defence lawyers say any trial is effectively decided before it starts, with prosecutors enjoying a 99.9-percent success rate - with confessions the key weapon at their disposal.

"Investigations basically determine the outcome of the process, not trials," said Kana Sasakura, professor at Konan University.

The defence is often reduced to arguing for clemency in sentencing rather than trying to win the case.

Police and prosecutors believe in confessions as a key to discovering the truth, although experience in other nations has shown this it is not the case, Sasakura said.

"It is perplexing that they fixate on the old way of doing things, when there are better ways," she told AFP.

The traditional system has resulted in horrendous cases of prosecutor misconduct, as well as false convictions.

In 2009, a team of prosecutors arrested a senior welfare ministry official for an alleged scam and held her for months.

She was later cleared of all charges and several elite prosecutors involved were sued for a range of crimes including evidence tampering.

The existing system runs the risk of producing wrong verdicts, as there is little scope for reviewing individual cases or prosecutors' conduct, Uchida said.

In addition, Uchida said courts, prosecutors and police are bound together with a sense of pride in keeping Japan safe.

Moreover, there are now decades of legal precedents based on the system, making any reform extremely difficult, Uchida added.

"Lawyers, legal scholars and journalists are not aware of the historical background and they do not question the status quo," Uchida said.

"The debate should not be about simply comparing the French and Japanese systems.

"Japan and France have had many of the same problems. France has made changes to improve its system. Japan has not moved," Uchida said.